People v. Perry , 620 N.Y.S.2d 127 ( 1994 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lerner, J.), rendered December 4, 1990, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence adduced at trial was legally insufficient to establish that he was guilty of murder in the second degree pursuant to Penal Law § 125.25 (2) is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it established the defendant’s guilt of "depraved indifference” murder beyond a reasonable doubt (see, e.g., People v Morgan, 207 AD2d 501; People v White, 191 AD2d 604; People v Sosa, 181 AD2d 532). Moreover, upon the exercise of our factual review power, we are satisfied that verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that the trial court erred in failing to charge the defense of justification is also without merit. Viewing the evidence in the light most favorable to the defendant (see, People v Steele, 26 NY2d 526), there is no reasonable view thereof that would indicate that the deceased was ever armed with a weapon, nor is there any indication that the defendant actually believed that the deceased was about to use deadly physical force against him, or that the defendant could not have retreated in complete safety at the time of the stabbing (see, e.g., People v Lee, 185 AD2d 824, 825; People v Charriez, 155 AD2d 548).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Mangano, P. J., Thompson, Bracken and Altman, JJ., concur.